Aquate II, LLC v. Jessica Myers, et al

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12669
____________________
AQUATE II LLC,
Plaintiff-Appellant,
versus
JESSICA TEDRICK MYERS,
KITUWAH SERVICES LLC,
Defendants-Appellees,
KITUWAH GLOBAL GOVERNMENT GROUP LLC
Defendant.
____________________
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2 Opinion of the Court 22-12669
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:22-cv-00360-AKK
____________________
Before G RANT, ABUDU, and H ULL , Circuit Judges.
G RANT, Circuit Judge:
This case first looks like a run-of-the-mill business dispute—
but closer inspection reveals thorny questions of tribal sovereignty
and contract interpretation. During the competitive bidding
process for a government contract, one tribally owned business
and its employee allegedly stole trade secrets from a competitor,
another tribally owned business. The aggrieved business now
seeks to vindicate its interests in federal court, while the alleged
aggressor attempts to shield itself with tribal sovereign immunity.
Meanwhile, the employee who allegedly stole the secrets says her
employment contract mandates that the claims against her can be
brought only in a designated tribal court. And that contention
raises yet another area of dispute—whether the tribal court even
exists.
We conclude that, because it waived sovereign immunity
for claims related to the federal contracting program, the defendant
tribe can be sued here. As for the former employee, the district
court failed to consider whether the clause naming the allegedly
nonexistent tribal court as the appropriate forum was valid and
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22-12669 Opinion of the Court 3
enforceable. For both reasons, we reverse the district court’s order
dismissing the case and remand for further consideration.
I.
The Small Business Administration’s 8(a) Business
Development Program is designed to assist certain “disadvantaged
business concerns” compete in the American economy. 13 C.F.R.
§ 124.1; see generally 15 U.S.C. § 637(a). To that end, the federal
government sets aside select federal contracts for businesses owned
and controlled by individuals and groups the Small Business Act
declares socially and economically disadvantaged. 15 U.S.C.
§ 637(a)(1), (4)–(6). Among those eligible are small businesses
owned by certain Indian tribes. Id. § 637(a)(4)(A)(i)(II), (ii)(II).
Both businesses here qualify. AQuate II, LLC, is organized
under the authority of the Alabama-Quassarte Tribal Town with
its principal place of business in Huntsville, Alabama. Kituwah
Services, LLC, is organized under the Eastern Band of Cherokee
Indians with its principal place of business in Cherokee, North
Carolina. Both tribal entities compete for and perform federal
contracts under the 8(a) program.
In 2012, AQuate won an 8(a) contract to provide armed
security services aboard the Sea-Based X-Band Radar-1 (SBX-1), a
semi-submersible platform vessel that operates as part of the
ballistic missile defense program. AQuate performed those
services for the length of the five-year contract term and won the
contract again in 2017 for another five-year term.
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4 Opinion of the Court 22-12669
Jessica Myers worked for AQuate from 2013 through 2017
during the initial SBX-1 contract and bid preparation for the
second. As a condition of her employment, Myers signed several
documents governing the use and disclosure of confidential
information, as well as the standard dispute resolution policy for all
Alabama-Quassarte Tribal Town-owned businesses. That policy
contained a clause designating a tribal court as the forum for any
employment disputes:
The tribal court of the Alabama-Quassarte Tribal
Town shall be the exclusive venue for litigation
arising out of Employee’s employment. If there is no
tribal court in existence, then the CFR Court for the
geographic region where Employee works shall be
the exclusive venue for litigation arising out of
Employee’s employment.
Myers resigned in 2017 and took a job as the Director of
Administration for Kituwah. According to AQuate, she also took
copies of contracts, proposals, personnel lists, and other security
information with her—a violation of her confidentiality
commitments.
AQuate intended to seek another five-year contract renewal
for SBX-1 in 2022, but this time so did Kituwah. To help her new
employer construct a winning bid, Myers allegedly contacted her
former colleagues at AQuate to solicit information about the
company’s pricing and compensation structure under the previous
SBX-1 contracts. Kituwah and Myers allegedly intended to use the
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22-12669 Opinion of the Court 5
purported trade secret information and documents Myers took to
compete in the SBX-1 bidding process. And beyond that, Kituwah
and Myers (allegedly) approached AQuate employees with job
offers—contingent, of course, on Kituwah winning the SBX-1
contract.
AQuate sued, alleging that Myers breached her employment
agreements and that she and Kituwah violated both the Defend
Trade Secrets Act of 2016 and the Alabama Trade Secrets Act. 18
U.S.C. § 1836; Ala. Code § 8-27-1 et seq. AQuate requested a
preliminary injunction, and Kituwah and Myers moved to dismiss.
The district court granted the motion to dismiss. First, the
court found that Kituwah had not waived sovereign immunity for
the trade secrets claims because AQuate’s lawsuit did not “relate
to” participation in the 8(a) program. Because it had granted
immunity to Kituwah on those claims, the district court dismissed
the same claims against Myers, finding that Kituwah was a
necessary and indispensable party under Rule 19. See Fed. R. Civ.
P. 19. As for the remaining breach of contract claim against Myers,
the court dismissed for forum non conveniens, concluding that the
dispute resolution policy required the claim to be resolved in the
Alabama-Quassarte Tribal Town court. The district court decided
that question without an evidentiary hearing, relying on the
parties’ assertions in their motions briefing.
AQuate moved for reconsideration. It focused mainly on
the forum question, arguing that the district court erred by
ignoring evidence that the Alabama-Quassarte Tribal Town court
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6 Opinion of the Court 22-12669
did not exist. The court denied that motion, and this appeal
followed.
II.
This Court reviews de novo a district court’s grant of a
motion to dismiss based on sovereign immunity. Motta ex rel. A.M.
v. United States, 717 F.3d 840, 843 (11th Cir. 2013). The district
court’s dismissal for forum non conveniens is reviewed for abuse of
discretion and should be affirmed “unless we find that the district
court has made a clear error of judgment, or has applied the wrong
legal standard.” GDG Acquisitions, LLC v. Gov’t of Belize, 749 F.3d
1024, 1028 (11th Cir. 2014) (GDG Acquisitions I) (quotation omitted).
We review de novo the enforceability of a forum selection clause.
Turner v. Costa Crociere, 9 F.4th 1341, 1345 (11th Cir. 2021).
III.
As a separate sovereign, “an Indian tribe is subject to suit
only where Congress has authorized the suit or the tribe has
waived its immunity.” Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc.,
523 U.S. 751, 754 (1998). The burden is on AQuate, as the party
seeking federal jurisdiction, to show that Kituwah “expressly and
unmistakably waived its right to sovereign immunity from suit.”
Furry v. Miccosukee Tribe of Indians of Florida, 685 F.3d 1224, 1234
(11th Cir. 2012) (quotation omitted).
The 8(a) program, at least as a general matter, requires such
a waiver from participating tribes. So, to take part, a tribally owned
business must adopt an express sovereign immunity waiver—also
known as a “sue and be sued” clause—designating the United
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States federal courts as “courts of competent jurisdiction for all
matters relating to SBA’s programs including, but not limited to,
8(a) BD [Business Development] program participation, loans, and
contract performance.” 13 C.F.R. § 124.109(c)(1). Kituwah’s
articles of organization include the required language:
The United States Federal Courts are hereby
designated as being among the courts of competent
jurisdiction for all disputes or other matters relating to
this Company’s involvement in programs of the Small
Business Administration, including but not limited to,
8(a) Business Development program participation,
loans, and contract performance. Simply stated, the
Company hereby specifically consents to “sue or be
sued” within the jurisdiction of the Federal Court
System of the United States.
The question here is whether AQuate’s lawsuit against Kituwah—
for allegedly stealing trade secrets about AQuate’s 8(a) SBX-1
contract to improve its own bid for that same contract—is a
“matter relating to” Kituwah’s involvement in the 8(a) program.1
It is, so Kituwah’s sovereign immunity waiver applies.
1 No one disputes that Kituwah is a part of the Eastern Band of Cherokee
Indians for the purposes of sovereign immunity, or that Kituwah’s sovereign
immunity waiver is coextensive with the 8(a) program’s waiver requirements.
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8 Opinion of the Court 22-12669
No binding, or even persuasive, authority has established
the scope of 8(a) sovereign immunity waivers.2 So we will start
from the beginning, with the plain meaning of the phrase “relating
to.” The Oxford English Dictionary defines “relate to” as “[t]o have
some connection with; to stand in relation to.” Relate, Oxford
English Dictionary (online ed.) https://perma.cc/FM2V-S4ZW.
And Black’s Law Dictionary defines “related” as “[c]onnected in
some way; having relationship to or with something else.” Related,
Black’s Law Dictionary (11th ed. 2019). It is no secret that the
ordinary meaning of this term is “a broad one.” Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383 (1992). That is true across a
range of contexts. In fact, “Congress characteristically employs the
phrase to reach any subject that has a connection with, or reference
to, the topics [a] statute enumerates.” Coventry Health Care of
Missouri, Inc. v. Nevils, 581 U.S. 87, 95–96 (2017) (quotation
omitted). It is hard, candidly, to think of a more capacious term to
use in defining the coverage of a provision.
AQuate’s claims against Kituwah are “related to” Kituwah’s
participation in the 8(a) program. Kituwah participated in the
program by preparing and later submitting a bid for the SBX-1
2 It appears that only three other courts—all out-of-circuit district courts—
have considered this issue, and even those decisions are sparse in their
reasoning. See Applied Scis. & Info. Sys., Inc. v. DDC Constr. Servs., LLC, No. 19-
CV-575, 2020 WL 2738243, at *4–5 (E.D. Va. Mar. 30, 2020); Rassi v. Fed.
Program Integrators, LLC, 69 F. Supp. 3d 288, 292–93 (D. Me. 2014); Hunter v.
Redhawk Network Sec., LLC, No. 17-CV-0962, 2018 WL 4171612, at *6–8 (D. Or.
April 26, 2018).
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contract, and the allegation that it stole trade secrets to boost its bid
is certainly “connected in some way” to that participation.
It would defy common sense to hold otherwise. Assuming
that AQuate’s allegations are true (as we must when reviewing a
motion to dismiss), Kituwah stole information about AQuate’s
“compensation structure, proposals, contract terms, and bidding
strategies” for the SBX-1 contract—an 8(a) contract. And it did so
to gain a competitive advantage in its own bid for that same 8(a)
contract. In other words, but for its attempt to win the bid for the
8(a) contract, Kituwah would not have used stolen trade secrets or
unlawfully solicited information from current AQuate employees.
That alleged misconduct “relates to” Kituwah’s participation in the
8(a) program.
As a practical matter, it is not obvious what other language
could have been employed to cover this kind of claim if “related
to” were not enough. Indeed, Kituwah’s counsel stated during oral
argument that if the tribe had intended to waive immunity from
suits like AQuate’s, it would have needed to adopt a blanket
immunity waiver for all suits. To the extent that counsel was
trying to suggest that if “related to” is not broad enough to capture
this lawsuit, nothing else would be either, we agree. Perhaps
recognizing as much, Kituwah’s counsel quickly walked that
statement back, saying instead that “the tribe could waive
sovereign immunity as to business tort claims connected to its
efforts to submit a bid on an SBA contract.” But we struggle to see
how that language is anything other than a subset of the language
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10 Opinion of the Court 22-12669
in Kituwah’s immunity waiver. Is “connected with” broader than
“related to”? We (and the Supreme Court) think not. See Morales,
504 U.S. at 383–84.
The district court disagreed. It concluded instead that
“AQuate’s claims are not based on Kituwah’s participation in the
8(a) program and do not involve allegations that Kituwah violated
any of the 8(a) program’s requirements.” This conclusion is flawed
for at least two reasons. First, as we have already explained,
preparing and later submitting a bid for an exclusive 8(a) contract
is a form of participation in the 8(a) program, so AQuate’s claim
that Kituwah misappropriated trade secrets for that bid is
necessarily “based on Kituwah’s participation in the 8(a) program.”
Second, neither Kituwah’s waiver, nor the regulation it was based
on, conditioned the waiver of sovereign immunity on Kituwah’s
violation of any specific 8(a) program requirements. See 13 C.F.R.
§ 124.109(c)(1). Kituwah waived immunity for all matters “relating
to” its involvement in the 8(a) program.
AQuate’s trade secrets claims “relate to” Kituwah’s
participation in the 8(a) program and thus fall within the scope of
Kituwah’s immunity waiver. The district court erred in concluding
otherwise. Because we reverse the sovereign immunity dismissal,
we also reverse the dismissal of the trade secrets claims against
Myers; it is no longer even arguably precluded by Rule 19, which
governs the compulsory joinder of indispensable parties. See Fed.
R. Civ. P. 19.
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IV.
Now for the district court’s dismissal of AQuate’s breach of
contract claim against Myers. We first consider—as we must—
whether the forum-selection clause in Myers’s employment
contract is enforceable, and then, if so, whether dismissal for forum
non conveniens was proper on account of that clause.
Procedurally, “the appropriate way to enforce a forum-
selection clause pointing to a state or foreign forum is through the
doctrine of forum non conveniens.” Atlantic Marine Constr. Co. v. U.S.
Dist. Ct. for the W. Dist. of Texas, 571 U.S. 49, 60 (2013). Ordinarily,
to obtain dismissal for forum non conveniens, “the moving party
must show that (1) an adequate alternative forum is available,
(2) the public and private factors weigh in favor of dismissal, and
(3) the plaintiff can reinstate his suit in the alternative forum
without undue inconvenience or prejudice.” GDG Acquisitions LLC
v. Gov’t of Belize, 849 F.3d 1299, 1312 (11th Cir. 2017) (GDG
Acquisitions II) (quotation omitted).
But when there is a valid forum-selection clause, “[t]he
calculus changes.” Atlantic Marine, 571 U.S. at 63. These clauses
should be “given controlling weight in all but the most exceptional
cases.” Id. (quotation omitted). So the usual importance attached
to the plaintiff’s choice of forum evaporates; instead, “as the party
defying the forum-selection clause, the plaintiff bears the burden of
establishing that transfer to the forum for which the parties
bargained is unwarranted.” Id. And rather than considering the
usual panoply of forum non conveniens factors, the district court may
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only consider arguments about the public interest, including
considerations like “the administrative difficulties flowing from
court congestion; the local interest in having localized
controversies decided at home; and the interest in having the trial
of a diversity case in a forum that is at home with the law.” Id. at
62 n.6 (alteration adopted) (quotation omitted). These factors,
though, “rarely defeat a transfer motion”—the forum-selection
clause will almost always control. Id. at 64.
The enforceability of forum-selection clauses is governed by
federal law. See, e.g., P & S Bus. Machs., Inc. v. Canon USA, Inc., 331
F.3d 804, 807 (11th Cir. 2003); cf. Great Lakes Ins. SE v. Raiders Retreat
Realty Co., 601 U.S. 65, 71–72 (2024). The Supreme Court’s decision
in The Bremen v. Zapata Off-Shore Co. is instructive.3 407 U.S. 1
(1972). There, the Court explained that forum-selection clauses are
“prima facie valid and should be enforced unless enforcement is
shown by the resisting party to be ‘unreasonable’ under the
circumstances.” Id. at 10; see also Krenkel v. Kerzner Int’l Hotels Ltd.,
579 F.3d 1279, 1281 (11th Cir. 2009). Following the Court’s
guidance in The Bremen, we look to four factors to evaluate whether
a forum-selection clause should be “invalidated” as unfair or
3 Even if state law were to apply to the validity of a forum-selection clause, it
would not change the analysis here because Alabama has adopted The Bremen’s
test for the enforceability of forum-selection clauses. See Rucker v. Oasis Legal
Fin., LLC, 632 F.3d 1231, 1236 (11th Cir. 2011); Pro. Ins. v. Sutherland, 700 So. 2d
347, 350 (Ala. 1997). We can thus “apply both federal and Alabama law
harmoniously in deciding the validity of the forum selection clause in this
case.” Rucker, 632 F.3d at 1236.
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22-12669 Opinion of the Court 13
unreasonable: “(1) its formation was induced by fraud or
overreaching; (2) the plaintiff would be deprived of its day in court
because of inconvenience or unfairness; (3) the chosen law would
deprive the plaintiff of a remedy; or (4) enforcement of the clause
would contravene public policy.” Krenkel, 579 F.3d at 1281.4 These
factors will rarely invalidate a forum-selection clause, which is,
after all, a contract between two parties. See id. But if a party can
show that “trial in the contractual forum will be so gravely difficult
and inconvenient that he will for all practical purposes be deprived
of his day in court,” the forum-selection clause will not be
enforceable. The Bremen, 407 U.S. at 18.
Federal courts cannot sidestep our responsibility to consider
this question under The Bremen before applying the forum non
conveniens inquiry as directed by Atlantic Marine. And that order of
operations is nothing new—take Turner v. Costa Crociere. 9 F.4th
1341. There, we considered the district court’s forum non conveniens
dismissal of a class action against an Italian cruise operator. Id. at
1344–45. We first explained the contours of The Bremen, and then
considered whether the plaintiff had shown that enforcement of
the forum-selection clause would be “fundamentally unfair” or
“contravene public policy.” Id. at 1345–47. The answer was no, so
we proceeded to Atlantic Marine and performed the typical forum
4 Our cases have inconsistently used the terms “valid” and “enforceable” when
articulating the effect of The Bremen’s test on forum-selection clauses without
explaining whether, or how, these terms differ. Compare Krenkel, 579 F.3d at
1281, with Turner, 9 F.4th at 1345. Whatever their differences may (or may
not) be, it does not change the result here, so we do not delve into that issue.
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14 Opinion of the Court 22-12669
non conveniens analysis that applies when there is an enforceable
forum-selection clause. Id. at 1347–49. Same goes for Don’t Look
Media LLC v. Fly Victor Ltd., 999 F.3d 1284 (11th Cir. 2021). There,
this Court explained that the forum-selection clause would not be
enforced if the plaintiff could make a “strong showing that
enforcement would be unfair or unreasonable” under The Bremen.
Id. at 1297 (quotation omitted). In that case, too, the plaintiff failed
to make such a showing, so we applied Atlantic Marine and
dismissed the case for forum non conveniens. Id. at 1298–1300.
Many other circuits have followed the same approach. As
the Sixth Circuit explained, because “the presence of a valid and
enforceable forum-selection clause alters the type of forum-non-
conveniens analysis a court must apply, it follows that a court must
first—before balancing the forum-non-conveniens factors—
determine whether a forum-selection clause is applicable to the
claims at issue, mandatory, valid, and enforceable.” Lakeside
Surfaces, Inc. v. Cambria Co., 16 F.4th 209, 215 (6th Cir. 2021); see also
Collins v. Mary Kay, Inc., 874 F.3d 176, 181 (3d Cir. 2017); Weber v.
PACT XPP Techs., AG, 811 F.3d 758, 767, 773–776 (5th Cir. 2016);
Jackson v. Payday Fin., LLC, 764 F.3d 765, 774–76 (7th Cir. 2014);
Gemini Techs., Inc. v. Smith & Wesson Corp., 931 F.3d 911, 914–17
(9th Cir. 2019); Azima v. RAK Inv. Auth., 926 F.3d 870, 874–76 (D.C.
Cir. 2019).
The Seventh Circuit’s decision in Jackson is especially useful
because it also involved a tribal forum. 764 F.3d 765. That case
looked at the validity of an arbitration clause (a type of forum-
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22-12669 Opinion of the Court 15
selection clause) in a loan agreement. Id. at 773–76; see Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 630–31
(1985). The clause specified the Cheyenne River Sioux Tribe as the
only arbitral forum for dispute resolution. Jackson, 764 F.3d at 769.
The court began by considering the validity of the clause and found
that enforcement would be unreasonable under the circumstances
because the record had clearly established that the forum did not
exist—the Cheyenne River Sioux Tribe did not involve itself in the
business of arbitration. Id. at 776. Because the court concluded
that the forum was “illusory,” it had “no hesitation” in finding
enforcement to be “unreasonable under M/S Bremen.” Id.
In line with these cases, the district court should have
considered the validity and enforceability of the forum-selection
clause under The Bremen before moving on to the forum non
conveniens analysis. Had the district court conducted that analysis,
it very well might have concluded that enforcing the forum-
selection clause in Myers’s employment contract would be “unfair
or unreasonable under the circumstances.” Krenkel, 579 F.3d at
1281.
AQuate repeatedly argued that the Alabama-Quassarte
Tribal Town court, though designated in the forum-selection
clause, did not exist, and that any evidence of the purported court
was fabricated by an ousted tribal chief in an effort to retain power.
AQuate submitted an affidavit from Famous Marshall, the
Chairman of Economic Development for the Tribal Town, which
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stated that the tribe’s constitution did not provide for a court
system and that the supposed tribal court was fictitious.
Kituwah and Myers, meanwhile, maintained that the
Alabama-Quassarte Tribal Town court was legitimate. In support,
they submitted two orders allegedly from that court. Suspiciously
absent, however, was any affidavit verifying that these exhibits
were authentic—and the faces of the orders are problematic. To
start, despite being more than four months apart, relating to
different issues, and seemingly binding different parties, both
orders are marked with the same number—22-001. But one
includes it as the “court order” number, while the other lists it as
the case number. If correct, that is an odd coincidence. The orders
also have remarkably different captions and formatting, which
would be surprising to see from a legitimate court. And the
subjects of the two orders are more curious still. The first claims
to ban Famous Marshall and several other members (at least one
of whom is connected to AQuate) from tribal property and offices.
The second “enjoins” AQuate (from doing what, exactly, it does
not say). These orders, in short, lack any indicia of authenticity.
Given this record, we conclude that the district court erred
when it concluded that the record did “not reveal any basis to
suggest” that the so-called orders of the Alabama-Quassarte Tribal
Town court were fraudulent. The record contained an affidavit
testifying that the court was fake and unsupported by the tribe’s
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governing charter. If that is not a “basis to suggest” that these
orders are fraudulent, we struggle to imagine what would be.5
We cannot say definitively whether the forum-selection
clause is or is not enforceable—that is for the district court to decide
on remand with an appropriate evidentiary hearing. Of course,
AQuate bears the burden to show enforcement is unreasonable
under the circumstances. But we are confident that, should the
district court determine that the Alabama-Quassarte Tribal Town
court is nonexistent, we, like the Seventh Circuit, would have “no
hesitation concluding that an illusory forum is unreasonable under
M/S Bremen.” Jackson, 764 F.3d at 776.6
* * *
The district court erred in dismissing the claims against
Kituwah on the basis of sovereign immunity, as well as in
dismissing Myers from the trade secrets claims under Rule 19. The
district court also erred in dismissing the breach of contract claim
against Myers on the basis of forum non conveniens—it failed to
consider the enforceability of the forum-selection clause and to
5 The forum-selection clause in Myers’s contract also specified that, if “there is
no tribal court in existence, then the CFR Court for the geographic region
where Employee works shall be the exclusive venue for litigation arising out
of Employee’s employment.” Oddly, however, neither party made arguments
about the viability of this venue or submitted any evidence in that regard.
Nothing herein precludes the parties from raising this issue on remand.
6 At oral argument, counsel appeared to suggest that a tribal court may exist
now even if it did not when the motion to dismiss was decided. We leave that
for the district court to sort out.
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consider all the evidence before it. The decision of the district court
is therefore REVERSED and REMANDED for further
proceedings.
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